Court Of Appeal Decision Highlights The Importance Of Credibility For Accident Victims

February 28, 2019

If you have been involved in a motor vehicle accident, you may find yourself suffering from personal injuries which impact your ability to lead the life you were accustomed to prior to the accident. While automobile insurance is there to provide you with financial relief in such circumstances, it is important to remember that there is an obligation on the part of the insured to act truthfully in order to maintain credibility before the court in the event that your insurance company denies coverage. A recent decision from the Court of Appeal of Alberta highlights the consequences of a failure to do so.

The accident and the trial

The accident took place on September 12, 2004. The respondent admitted liability, but a trial was still scheduled in order to determine damages. The court explained the primary issue at trial was whether the appellant developed an ongoing chronic pain syndrome or somatic symptom disorder (“SSD”) with prominent pain as a result of the accident.

The trial judge did not find the appellant to have been a credible witness. The court described the trial judge’s findings as follows,

“He found that her evidence was inconsistent regarding the nature and location of her injuries and, further, that her self-reports were inconsistent with the various medical providers’ notes and records. Given the importance of the appellant’s credibility to the strength of her experts’ overall opinions, the trial judge placed little weight on the appellant’s expert reports preferring, instead, the respondent’s expert evidence which refused to draw a causal connection between the motor vehicle accident and the appellant’s current chronic pain and SSD diagnosis. As such, he concluded that the appellant suffered other physical injuries as a result of the accident, but had recovered from those injuries by October 31, 2008. He awarded her damages to October 31, 2008 totaling $76,028.”

On appeal

The trial judge’s findings surrounding the appellants injuries were those of fact (as opposed of law). This means that in order to appeal these findings, the court must find a palpable and overriding error, which is the equivalent to finding the trial judge to have been “clearly wrong.”

The trial judge was faced with two sets of contradictory evidence at trial. The appellant’s testimony and evidence was not as credible as the respondent’s, and the court ultimately preferred that of the respondent. The court summarized this approach, writing,

“The trial judge preferred the respondent evidence that other stressors in the appellant’s life and potential secondary financial gain are the likely cause of the current SSD and chronic pain diagnosis. While the trial judge could reasonably have concluded otherwise, the issue is whether his conclusions are reasonably supported by the evidence and whether he misapprehended the medical evidence. This Court must be careful not to fall into a correctness review, substituting its opinion for that of the trial judge, where the standard demands deference. In our view, the trial judge’s findings of fact and conclusions are reasonably supported on the evidence and he did not misapprehend the medical evidence.”

The court then listed a laundry list of instances that showed the appellant to not have been a credible witness. This led the court to find, “The trial judge’s preference for the evidence of the respondent’s experts over the appellant’s is reasonable and well supported by the record and by his findings as to the appellant’s credibility. The trial judge is entitled to accept some, none, or all of an expert’s evidence, so long as the trial judge is reasonable in doing so. Where a trial judge is presented with competing explanations or conclusions from expert witnesses, there is no reversible error when he makes a reasoned choice between the two.”

At HMC Law, our team can assist clients who have suffered as a result of a motor vehicle accident. We offer compassionate, dedicated advocacy in support of your claim for compensation. We have significant experience in the court room, having successfully argued hundreds of cases on behalf of our clients. We are willing to negotiate on behalf of our clients, but are ready to take a case all the way to trial if necessary. To speak to one of our lawyers, call 1-800-480-3534 or contact us online. We represent injured clients in Calgary and throughout Alberta.

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